FISA Warrantless Wiretapping Program Renewed By Senate

The U.S. Senate renewed the warrantless wiretapping program begun during the George W. Bush administration by a 73 to 23 vote on Friday, sending the FISA Amendments Act to President Barack Obama's desk for his signature.

The vote marked a symbolic next step for the wiretapping program, which collects Americans' communications with foreign intelligence targets abroad. Four years ago, in the midst of the 2008 Democratic presidential primary, an identical version of the bill was the subject of a highly contentious debate in the Senate. Obama and others argued then that Bush's program went too far in violating Americans' privacy. This year, with a supportive Obama in the Oval Office and the media focus on the fiscal cliff, the bill was renewed with much less attention.

After voting down reform three reform amendments on Thursday, the Senate continued debate on the spy bill on Friday morning. Sen. Ron Wyden (D-Ore.) offered an amendment meant to force the National Security Agency and the Central Intelligence Agency to reveal how frequently they have collected Americans' communications as part of their efforts to amass intelligence on foreign targets. Even an estimate would suffice, Wyden has argued -- but the spy agencies have rebuffed his efforts to get a general number, claiming it is not possible.

"This is the last oportunity for the next five years for the Congress to exercise a modest measure of real oversight over this intelligence surveillance law," said Wyden, referring to the 2017 expiration date in the new law. "It is not real oversight when the United States Congress cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law abiding Americans have had their phone calls and emails swept up under the FISA law."

Wyden and other civil liberties advocates are worried that the spy agencies might be able to use intelligence gathering capabilities ostensibly targeted at foreigners -- a legal practice under the law -- to search their databases for Americans' emails and phone calls without a warrant. They have pointed to a secret room at an AT&T switching center in San Francisco, as well as whistleblowers' revelations about the NSA's collection capability, as signs that the wiretapping may go too far in sucking up domestic intelligence. Wyden's amendment would also have revealed to the public whether "backdoor searches" are occurring under the highly secretive wiretap program.

But Wyden was opposed on the floor by Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, who warned that even public revelations about the program could have dangerous reverberations.

"What this aims to do is to make public a program that should not be made public at this time," she said.

Feinstein and Saxby Chambliss (R-Ga.) both stressed that the program's authorization will expire on Dec. 31. With the clock ticking down, they said, intelligence collection on terrorists was at risk.

But Wyden responded that it would "not exactly be a difficult and arduous task" for the House to pass the Senate's amended bill when it meets to discuss the fiscal cliff on Sunday. He added that his amendment would have given the executive "unfettered" ability to redact any sensitive information from its report. His amendment failed, with 43 senators in favor and 52 against, falling far short of the 60 vote threshold needed for it to pass.

Feinstein promised during Senate debate on Thursday to take up some oversight changes, including stronger inspector general powers and disclosure of secret court rulings on the program's constitutional limits, during the overall intelligence community's reauthorization process in 2013.

"Of course it's disappointing that such moderate amendments failed," said Michelle Richardson, a legislative counsel for the ACLU. The civil liberties group would like to see stronger curbs on the government's ability to do bulk collection of communications abroad. Nevertheless, she added, "I think there were some strides made during the floor debate. We'll simply have to follow up with them to make sure those promises materialize."

Outside of Congress, a lawsuit the Electronic Frontier Foundation has brought against the NSA over the warrantless wiretapping program is proceeding in federal court.

<strong>Scenario:</strong>
As a foreign correspondent on assignment in Afghanistan, you successfully contact Taliban representatives who take you to meet a mullah. After you've completed your interview and fact-finding mission, U.S. officials arrest you under suspicion of terrorism.
<strong>How:</strong>
Section 1021 (2) of the National Defense Authorization Act <a href="http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf" target="_hplink">grants power</a> to indefinitely detain "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners."
You're not sure if what you did was "substantial" or really "supported" anyone. It's quite possible that nobody does, as the text of the law doesn't define these words. This could take a while to sort out.
In the recent hearing on a lawsuit challenging that section of the act, Judge Katherine Forrest asked an Obama lawyer if plaintiff Chris Hedges could be assured that he would not be subjected to detention under Section 1021, journalist Naomi Wolf <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">noted</a>.
Hedges is a Pulitzer prize-winning reporter who has worked extensively in Afghanistan and the Middle East. The administration attorney suggested that the specifics of Hedge's situation would make his detention unlikely, but responded, "I cannot say that today."
While the Obama administration has said you're entitled to a trial as a U.S. citizen, this won't preclude you from a protracted journey through an encumbered court system charged with figuring out -- based on secret evidence -- why you were picked up. And if it this happens during a future administration, officials might not agree with Obama on your right to a trial.